What happens when a property owner accepts fill soil at their site, i.e. for levelling or landscaping purposes, only to discover later that the “clean fill” is contaminated with building and demolition waste, general rubbish, chemicals, heavy metals or even asbestos?
Accepting fill soil may seem like a good idea, but if it contains waste, you are inadvertently breaking the law as it is inferred to represent participation in illegal dumping and therefore you are liable to be fined or prosecuted. In addition, once the waste is on the property, the affected area is considered contaminated land and you will be left holding the bill for removal / clean-up costs.
The best way to prevent the financial and environmental risks that can come with contaminated soil is to stop the material reaching your property in the first place.
Understand the Risks
In Victoria it is an offence under the Environment Protection Act 2017 (the EP Act) and the Environment Protection Regulations 2021 (the Regulations) to allow any industrial waste to be placed on your land; even if it is mixed with soil.
A rural property is a valuable asset to individuals and companies looking to dispose of waste soil from building, demolition and excavation sites, and old industrial sites undergoing remediation. By accepting the waste soil, property owners are enabling the waste producer to avoid paying levies on material that should be getting treated or going to landfill.
Most importantly, the property owner (plus their family and others) could be exposed to waste that could severely impact health, and may impact the use of the land and any produce from it.
The Environment Protection Authority Victoria (EPA) is actively investigating and prosecuting landowners who accepted contaminated soil from unknown sources. Penalties in excess of $80,000 may apply and cleanup costs can run from tens of thousands to millions of dollars (depending on the extent and severity of contamination).
The EP Act does allow the recovery in court of any reasonable costs against any person or company responsible for causing or contributing to contamination of land (under the Polluter Pays Principle); however, the onus is on the property owner with all the associated legal costs and claim processing time.
If you don’t know where the fill soil is from – don’t take it!
Be vigilant before you take any soil from an operator offering it to you. Here are eight actions you can take to minimise your risk exposure:
- Contact the planning department of your local council to find out if a permit is required for filling activities on your land. Tell them how much fill you plan to take and where it will be placed on your property.
- Do a quick search online to find out the credentials of the individual or company offering you free or cheap fill soil. Do they have a good reputation? Ask for references and check them out. You have the right to ask them for their driver’s licence details and business details (ABN or ACN).
- Ask for the address(es) of the source site(s). Use local council records in that area to find out whether there were any potentially contaminating activities on that site in the past.
- Do not accept any waste soil unless the waste producer has provided evidence of the ‘fill material’ soil classification undertaken by an environmental consultant according to the EPA guidelines. As part of their waste duties, the waste producer should have carried this out before they began to move the fill. If they cannot give you this information, you have the right to refuse the material.
- Supervise each load that comes off each truck. Make sure the soil does not contain any bricks, concrete, asphalt, wood, asbestos, metal or plastic. Check that the soil does not smell of chemicals or have any discolouration. If it does contain waste, has an odour or is discoloured, immediately cease accepting the material.
- Take photos of the trucks and registration plates for your own records.
- Keep copies of the documents and records, including names and addresses of the suppliers and transporters.
- Keep your property gates closed so that trucks cannot enter and dump loads without your permission.
Compliance with the steps described above will automatically designate that place or premises a ‘lawful place’ for the receipt of fill soil as per the EPA Fill Material Waste Determination in the Regulations.
Waste receivers who receive waste in accordance with a Waste Determination must ensure they read and understand it. To meet their waste duties, waste producers and receivers must comply with all waste determination conditions and limitations.
Industries with high potential for contaminated land include dry-cleaning, breweries and distilleries, fuel storage, electrical manufacturing, textiles and spray-painting. For a full list of potentially contaminating activities and what the associated contaminants of concern are, download our free guide ‘What Every Property Developer Needs to Know About Potentially Contaminated Land: the complete handbook.’
In here you will learn more about:
- What potentially contaminated land is and the associated risks to your business;
- What steps you need to take to mitigate potential risk and the entities you need to work with; and
- What the implications are from a cost and management perspective.